Cowen v. People, Supreme Court Case No. 16SC952

• Court: Supreme Court of Colorado
• Citation: 431 P.3d 215
• Docket Number: Supreme Court Case No. 16SC952
• Parties: Jared COWEN, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Decision Date: 10 December 2018

431 P.3d 215

Jared COWEN, Petitioner
v.
The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 16SC952

Supreme Court of Colorado.

December 10, 2018

Attorneys for Petitioner: Megan A. Ring, Public Defender, Julia Chamberlin, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶ 1 Restitution is "a crucial element of sentencing." Roberts v. People , 130 P.3d 1005, 1007 (Colo. 2006). Today we must determine whether Colorado’s restitution statutes authorize a trial court to order a defendant who has been acquitted of a charge to pay restitution for pecuniary losses caused by the conduct that formed the basis of that charge.¹ The trial court answered the question in the affirmative and ordered Jared Cowen to pay restitution for losses that resulted from acquitted conduct. A division of the court of appeals upheld the restitution order in an unpublished, unanimous decision. We disagree with the division and reverse.

¶ 2 We hold that Colorado’s restitution statutes do not allow a trial court to impose restitution for pecuniary losses caused by conduct that formed the basis of a charge of which the defendant has been acquitted. Even where, as here, the defendant has been convicted of a separate charge, our restitution statutes do not permit a trial court to order restitution for losses suffered as a result of the acquitted conduct. The People’s contrary construction would at once violate our rules of statutory interpretation and offend the Fourteenth Amendment’s guarantee of procedural due process. Therefore, we reject it. To the extent that previous decisions of the court of appeals are in conflict with this opinion, we now disapprove of them.

I. Factual and Procedural History

¶ 3 Cowen owned a semi-truck as part of his trucking business. Because his semi-truck was in need of extensive maintenance, he took it to a repair shop. To pay the $37,485.65 bill, Cowen borrowed $15,000 from his brother and wrote two checks from his company’s bank account, one for $9,327.65 ("the first check") and the other for $13,158.00 ("the second check"). Cowen admitted

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at trial that he knew he did not have sufficient funds to cover the checks when he wrote them, and his bank records corroborated his testimony. He explained, however, that he meant to put enough money in his account to cover the checks. More specifically, he claimed that he planned to deposit checks that totaled more than the amount of the first check and that he intended to obtain a loan from a financing company in the amount of the second check. But Cowen ultimately failed to add sufficient funds to his company’s account to cover either check.

¶ 4 Believing it had been paid in full when it received Cowen’s checks, the repair shop released the semi-truck to him. A few days later, it learned that both of Cowen’s checks had failed to clear and that Cowen had issued a stop-payment on them. When the repair shop contacted Cowen, he stated that its work was unsatisfactory.

¶ 5 Cowen was thereafter charged with two counts of fraud by check—one count for each of the checks. He defended against the charges by asserting that he did not intend to defraud the repair shop. The jury convicted Cowen of the charge related to the first check, but acquitted him of the charge related to the second check.

¶ 6 The trial court sentenced Cowen to probation for a period of three years. As part of Cowen’s sentence, the People requested restitution in the amount of $22,485.65, the total amount of the two checks. Cowen objected to any restitution being imposed for pecuniary losses suffered by the repair shop as a result of the second check because he was acquitted of the charge involving that check. Following a hearing, the trial court granted the People’s request, finding that they had proven by a preponderance of the evidence that Cowen had written both checks knowing he had insufficient funds in his company’s account to cover them. The trial court acknowledged Cowen’s acquittal of the charge related to the second check, but explained that it was "absolutely convinced ..., by far more than a preponderance of the evidence," that Cowen knew he had failed to secure the financing company’s loan to fund that check.

¶ 7 Cowen appealed, and a division of the court of appeals affirmed the restitution order. The division concluded that our restitution statutes define a victim based on a defendant’s conduct, "not the charge of which the defendant was convicted." People v. Cowen , No. 14CA2354, ¶ 28 (Colo. App. Nov. 23, 2016). Consequently, reasoned the division, regardless of whether a defendant is convicted of a charge, "[i]f the underlying conduct proximately cause[d] [the] victim’s loss, restitution is appropriate." Id. Given the trial court’s finding that Cowen’s underlying conduct proximately caused the repair shop’s $22,485.65 losses, the division upheld the restitution order. Id. at ¶ 29. This appeal followed.²

II. Analysis

¶ 8 Cowen avers that Colorado’s restitution statutes authorize the imposition of restitution only for losses caused by conduct of which a defendant has been convicted.³ Alternatively, Cowen maintains that if the restitution statutes are construed as the People posit, they will be rendered unconstitutional pursuant to the United States Supreme Court’s recent decision in Nelson v. Colorado , ––– U.S. ––––, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017).⁴ Under Nelson , Cowen argues, restitution related to the second check is barred because he retains the presumption of innocence as to the charge premised on that check.

¶ 9 The People disagree and urge us to conclude that restitution may be awarded under our statutory scheme even if the defendant is acquitted of the crime charged. All that is required, assert the People, is a post-trial

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finding from the trial court by a preponderance of the evidence that the victim was aggrieved by the defendant’s conduct and that such conduct was the proximate cause of the alleged pecuniary losses. The People acknowledge the holding in Nelson , but contend that it is inapplicable because Cowen was convicted of at least one charge. This conviction, they claim, divests Cowen of the presumption of innocence as to any charge in this case.

¶ 10 We begin by setting forth the standard of review that controls Cowen’s appeal. Next, we discuss our rules governing statutory interpretation and apply those rules to our restitution statutes. We pivot from our interpretation to analyze the People’s contrasting construction. Specifically, we consider whether the People’s reading of the pertinent statutory provisions is in accord with our rules of statutory interpretation and whether it runs afoul of the right to procedural due process under the Fourteenth Amendment. We end by addressing the merits of Cowen’s argument that the court of appeals erred in holding that the trial court was authorized to order him to pay restitution for the second check.

A. Standard of Review

¶ 11 We review questions of statutory construction de novo. Pineda-Liberato v. People , 2017 CO 95, ¶ 21, 403 P.3d 160, 164. Questions of law are likewise reviewed de novo, People v. Porter , 2015 CO 34, ¶ 8, 348 P.3d 922, 924, and we agree with the parties that whether a trial court has authority to impose restitution for losses suffered as a result of acquitted conduct is a question of law.

B. Rules of Statutory Interpretation

¶ 12 When interpreting a statute, "our primary purpose is to ascertain and give effect to the General Assembly’s intent." Pineda-Liberato , ¶ 22, 403 P.3d at 164. The starting point in this endeavor is to examine the plain meaning of the statutory language. Marsh v. People , 2017 CO 10M, ¶ 20, 389 P.3d 100, 105. The plain meaning rule is the cardinal rule in the realm of statutory...